FBI won’t reveal hack, so child porn evidence tossed

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Evidence in a child pornography trial has been thrown out because the US government refuses to detail how it hacked the website allegedly visited by the defendant.

The FBI says the hacking method, referred to as a Network Investigation Technique, or NIT, allowed the bureau to track Jay Michaud after he visited a hidden website on the so-called Dark Web, leading to charges of possessing child pornography. Defense attorneys say a government explanation could show that the method yielded unreliable information.

The case is part of a growing debate over government hacking in criminal cases. Michaud is one of several people facing charges after the bureau used the hacking method to infiltrate the hidden child pornography website and identify the computers of those who visited it. A handful of those cases have seen evidence tossed out as well. In addition to concerns over the reliability of the hack raised by Michaud’s attorneys, judges have raised concerns over warrants that allow the government to target a computer even when its location is unknown.

As the resulting cases have unfolded, the US Senate is considering a change to federal judicial rules that would let judges sign warrants to permit the government to target computers outside their jurisdiction when their locations are unknown.

In the case of Michaud, who was a middle school teacher in Vancouver, Wash., the technique led police to obtain a search warrant last year for his home, where they allegedly found a cell phone and two thumb drives containing child pornography. That evidence is no longer part of the case.

“Evidence of the NIT, the search warrant issued based on the NIT, and the fruits of that warrant should be excluded and should not be offered in evidence at trial,” Judge Robert J. Bryan of the US District Court of the Western District of Washington wrote in his opinion Wednesday, issued after a hearing.

Michaud allegedly visited the child pornography site through the Tor browser, a tool that lets Internet users disguise their locations and visit hidden areas of the Web.

His attorneys argued that he had a right to know exactly how the government carried out the alleged hack, “given the sophistication of the FBI’s surveillance technology and the evidence that it has misled the courts in other cases about that technology.”

The brief cited a report from the Associated Press about cases in which child pornography was found stashed on the hacked computers of innocent people.

Colin Fieman, a federal public defender representing Michaud, did not respond to a request for comment.

The judge had already ordered the government to turn over its code, but the US Attorney asked him to reconsider. After pointing out the files containing alleged child pornography were found on the defendant’s thumb drives and cell phone, the US Attorney’s brief said, “any concern about corruption or other errors that might cast doubt on the accuracy of the information obtained through the NIT…can be addressed by review of the information that was actually collected.”

The US Department of Justice did not respond to a request for comment on the case.

While Bryan ruled Wednesday to exclude evidence from the trial, he also wrote that the case shouldn’t be dismissed.